Executor’s Duty of Neutrality

The executor’s duty to beneficiaries of a will, both specified and potential, is to be neutral.  This was confirmed in the recent case of Ketcham v. Walton, 2012 BCSC 175. 

In Ketcham, the testator had disinherited his children, from whom he was estranged, and provided that his estate go to several friends and charities under his will.  In an attempt to address the anticipated wills variation claims by his children, the testator included in his will provisions which specifically instructed his executor to take an active role in defending the will if any of his children brought a wills variation action.  The children did bring a wills variation action.  The executor sought directions from the Court with respect to what position it could take on the merits of the wills variation action in light of the provisions in the will. 

Citing Quirico v. Pepper Estate (1999), 22 B.C.T.C. 32, the Court confirmed the executor’s duty of neutrality and impartiality; that the matter of how the estate is to be divided should be of indifference to the executor.  Accordingly, the Court held that the executor could not take an active role in defending the will. However, the Court went on to hold that if there was no party to ultimately represent the testator’s position (i.e. if there are no beneficiaries under the will to defend the testator’s wishes in the proceedings), then the executor may act in a non-adversarial role as amicus to assist the Court in determining the merits of the wills variation action.

The court in Ketcham also went on to find that the clause instructing the executor to take an active role in defending the will in the event of a wills variation claim, was void as against public policy.  As the children have a statutory right to challenge the will under the Wills Variation Act, a clause which attempted to deny them this right offended public policy and thus, was void.

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